Seems that the issue of paying third-party vendors a fee to file documents in state courts has raised its head again – this time in Georgia. We covered this issue back in April when a claim was made against a Texas court that these types of fees were RICO violations. According to a Fulton County Daily report (paid service) and a Courthouse New Service report, a plaintiff was ‘locked out’ of the Lexis File and Serve service because the plaintiff’s counsel had allegedly not paid the service’s fees. The fees run from $7 to $12 per document and are paid directly to Lexis, and not the courts. Also according to the complaint, the Fulton County court apparently would only accept the electronic filing in this class-action case, and no paper documents would be accepted (supposedly getting around the $7 and $12 Lexis fees.)

In one of those arguments that fits the saying of “it may be true, but do you really want to use that as your defense?” Lexis’s attorney, William K. Whitner, said “The Georgia Supreme Court has repeatedly held that there is no constitutional right to access to the courts.”

This was swiftly met with a response from DeKalb Superior Court Judge Robert J. Castellani asking Whitner, “Did you just say there’s no right of access to the courts?”

Without skipping a beat, Whitner replied “No constitutional right… That’s the what the case law says; I’m not saying it’s right or wrong.”

Judge Castellani gave some sage advice to Whitner when he followed up with “I hope that’s not what your case rests on.”

There are a lot of issues that surround the idea that courts outsource their electronic filing. One of the things that seems to pop up in these cases is the fact that the plaintiffs and defendants are paying court fees directly to third party private vendors, and then the vendors are sending those fees on to the courts (after taking their cut.) I know that this is “logistically” a good way of doing things, but it does raise issues of people being excluded from the public court system because of money owed to a private company. Seems like it would be smarter for the courts to set their electronic fees in a way that builds the cost into the court fee, and not as a separate fee, then the court would pay the vendor a fee. That way, at least logistically, citizens would be failing to pay the court, not a private party. That would make the access to courts issue something that would then throw out the issue of private companies having a role in excluding citizens from the courts.

  • Anonymous

    When courts impose fees necessary to file things (which they obviously do), there's usually a means for filing in forma pauperis, which I've always guessed was a way of avoiding constitutionality concerns arising out of access to justice.

    So, maybe this private delegate of the court should just implement a similar process that allows for those who can't afford the fee to still gain access to the court (and impose an obligation to show cause just as is done in the public court setting). The private vendor should have asked the court to agree to cover at least some of the cost for those whose fees are waived, since that's just flowing down the costs that the court would have had had it been taking these filings on its own (and needing to deal with poor litigants).

    Of course, nobody bothers to think through these little things when they gladly accept the cash to run their systems and privatize things. Somebody should have thought this through before this mess showed up.

  • I don't see the issue as being an "in forma pauperis" issue. This is an issue that allow a private company to make a determination that they can stop a legitimate client from filing required documentation with the appropriate court based on the fact that money is owed to that private company.

    Now, whether that is actually the case or not is not the issue; that is what appears to be happening in some cases.

    There are a lot of benefits to e-filing, but courts have been extremely sloppy in the wording of either the court rules, or getting the legislature to write in the statutory requirements for e-filing. It just gives a bad impression when you set up a situation where a private vendor can ultimately make a determination on what documents get filed or not to a court, with little to no alternative to work around that private vendor.

    In simple terms "it just doesn't smell right."

  • Anonymous

    I think you'd agree that the court itself could force you to pay a fee before you could file a document (provided the i.f.p. folks were addressed as noted above, and similar due process rights were respected). There are countless decisions at a constitutional level that say a court can bar entry to the courtroom until somebody pays a reasonable fee, such as a filing fee, so long as those safety nets like I.F.P. were available (which is why I thought that was the important issue here).

    From there, I don't see how the court doesn't have a right to delegate the ministerial task of accepting that money to another third-party, or how the fact that such gatekeeper is itself a private party changes that right to delegate. In the course of doing that delegation, the court needs to make sure that its obligations to respect due process are flowed down to the third-party, since the third-party is then standing in the shoes of the court when it does its gatekeeping tasks.

    I think you're suggesting this flow-down was not done well in the Lexis instance. If the private party isn't doing the job well, like improperly denying the right to file even though the filer had actually paid, and such was a breach of the private party's contract with the court which memorialized the delegation of the task, I would have no problem with getting mad about that. Or, if the third-party is adding more than a reasonable amount of profit on top of what the court gets, there's certainly room to argue about that. Just as I'd get mad if the court itself screwed that up, like failing to recognize that I'd already paid or charging me more than a reasonable fee. (I of course know nothing about what happened in this instance, so I do not offer any opinion either way about this particular case.)

    But, I don't agree that the court has no right to delegate the gatekeeping function, so long as due process rights (like i.f.p.) and the like are respected in the course of that delegation. Nor do I agree that a party can demand filing without paying the required fee, regardless of whether that fee had been designated to be paid to the court directly or to the court's designee.

  • I think if you talk to anyone that has worked in most state courts, especially in the court clerk's office, you'll quickly discover that anything related to fees is a serious, and complicated matter that usually takes a legislative act to enact or amend. I don't know of any courts that can set their own filing or administrative fees without changing the statute through the legislature. This would include the court delegating the ministerial task of collecting these fees.

    Now, perhaps Georgia has specifically assigned the rights to the court to amend its own rules for these tasks, but it would be unusual for the legislature to allow the court to set costs for e-filing on its own… and seems improbable that the legislature allows private vendors to set filing fees outside those allowed by law.

  • Anonymous

    All fair points, and as noted I know nothing about the Georgia case so I won't guess. One would hope a court would know enough not to violate its own state's laws, but you're right that it wouldn't be the first time.

    You may have last word.